Tutor-Saliba Corp. v. Herrera
**22 Nomi Castle, Castle & Associates, Los Angeles,CA, David Romyn, for Appellant.
Dennis J. Herrera, City Attorney, Joanne Hoeper, ChiefTrial Deputy, James M. Emery, Deputy City Attorney,San Francisco, CA, for Respondent.
Plaintiff and appellant Tutor-Saliba Corporation(Tutor) appeals an order striking its complaint fordefamation against defendant and respondent Dennis J.Herrera (Herrera), following Herrera’s successfulspecial motion to *607 strike brought under California’santi-SLAPP statute. (Code Civ. Proc., § 425.16.) [FN1] The motion was granted after the trial courtconcluded that the alleged defamatory statements madeby Herrera in a speech before the San FranciscoChinese-American Democratic Club (CADC) wereabsolutely privileged under California Civil Codesection 47, subd. (a) ( “official duty privilege”), as wellas under Government Code sections 821.6 and 820.2(“prosecutorial immunity” and “discretionaryimmunity,” respectively). We affirm, concluding thatthe alleged statements were subject to the official dutyprivilege. [FN2] We also conclude that the trial courtdid not err in denying Tutor’s request for limiteddiscovery, under section 425.16, subdivision (g).
On February 19, 2004, [FN3] Tutor filed a complaintalleging a single cause of action for defamation againstHerrera in San Mateo County Superior Court.Paragraph 8 sets forth quoted statements attributed toHerrera which are alleged to be defamatory of Tutor. In response, Herrera filed a motion to change venue ofthe case to San Francisco.
While the motion to change venue was pending,Herrera filed a motion to strike Tutor’s complaint onJune 4 pursuant to section 425.16. The motion neitherchallenged the sufficiency of Tutor’s complaint to statea cause of action for defamation, nor did it deny that thestatements quoted in the complaint were actually madeby Herrera. Instead, the motion contended that thecomplaint was filed in retaliation for Herrera’s exerciseof his constitutionally protected right of free speech inconnection with a matter of public interest. Therefore,the complaint fell within the provisions of California’santi-SLAPP statute (§ 425.16, subd. (b)). In addition,Herrera asserted that the statements attributed to himwere made concerning a federal lawsuit against Tutorfiled by Herrera on behalf of the City and County ofSan Francisco and the State of California and, thus, theywere privileged. Because the statements wereprivileged, Herrera contended that Tutor could notshow a likelihood that it would prevail on thecomplaint’s merits, and therefore, the motion to strikethe complaint must be granted.
On October 8, eight months after filing the complaint,Tutor filed an ex parte motion seeking limiteddiscovery in connection with the pending motion tostrike **24 (§ 425.16, subd. (g)). That ex parteapplication was denied, without prejudice to renewingthe motion at the hearing on Herrera’s motion to strike. Tutor was also ordered to file its opposition to Herrera’smotion by October 13, and any reply was to be filed nolater than October 18. Accordingly, the hearing wascontinued to October 21. Tutor then filed an oppositionto Herrera’s motion [FN5] on October 13, and Herreraa reply brief on October 18.
FN5. Apparently, Herrera filed an amendedmotion to strike on September 20, after Tutorfiled a first amended complaint (FAC) onSeptember 17. However, neither partycontends that the FAC materially changed theallegations of defamation against Herrera orthe defenses of privilege raised in his motionto strike.
Following a hearing on October 21, the trial court filedits order granting Herrera’s motion to strike onNovember 5. This appeal followed.
A. The Anti-SLAPP Statute and the Standard ofReview on Appeal
We recently had occasion to discuss at considerablelength California’s anti-SLAPP statute, including theapplicable standard of review. As we said in Thomas v.Quintero (2005) 126 Cal.App.4th 635, 644-645, 24Cal.Rptr.3d 619: “[¶] Section 425.16, commonlyreferred to as the anti-SLAPP law, provides in relevantpart: ‘(a) The Legislature finds and declares that therehas been a disturbing increase in lawsuits broughtprimarily to chill the valid exercise of the constitutionalrights of freedom of speech and petition for the redressof grievances. The Legislature finds and declares thatit is in the public interest to encourage continuedparticipation in matters of public significance, and thatthis participation should not be chilled through abuse ofthe judicial process. To this end, this section shall beconstrued broadly. [¶] (b)(1) A cause of action againsta person arising from any act of that person infurtherance of the person’s right of petition or freespeech under the United States or CaliforniaConstitution in connection with a public issue shall besubject to a special *609 motion to strike, unless thecourt determines that the plaintiff has established thatthere is a probability that the plaintiff will prevail on theclaim. [¶] (2) In making its determination, the courtshall consider the pleadings, and supporting andopposing affidavits stating the facts upon which theliability or defense is based. [¶] (3) If the courtdetermines that the plaintiff has established aprobability that he or she will prevail on the claim,neither that determination nor the fact of thatdetermination shall be admissible in evidence at anylater stage of the case, and no burden of proof or degreeof proof otherwise applicable shall be affected by thatdetermination. [¶] … [¶] (e) As used in this section, “actin furtherance of a person’s right of petition or freespeech under the United States or CaliforniaConstitution in connection with a public issue”includes: (1) any written or oral statement or writingmade before a legislative, executive, or judicialproceeding, or any other official proceeding authorizedby law; (2) any written or oral statement or writingmade in connection with an issue under consideration orreview by a legislative, executive, or judicial body, orany other official proceeding authorized by law; (3)any written or oral statement or writing made in a placeopen to the public or a public forum in connection withan issue of public interest; (4) or any other conduct infurtherance of the exercise of the constitutional right ofpetition or the constitutional **25 right of free speechin connection with a public issue or an issue of publicinterest.’
 “Under the statute, the court makes a two-stepdetermination: ‘First, the court decides whether thedefendant has made a threshold showing that thechallenged cause of action is one arising from protectedactivity. (§ 425.16, subd. (b)(1).) “A defendant meetsthis burden by demonstrating that the act underlying theplaintiff’s cause fits one of the categories spelled out insection 425.16, subdivision (e)” [citation]. If the courtfinds that such a showing has been made, it must thendetermine whether the plaintiff has demonstrated aprobability of prevailing on the claim. (§ 425.16, subd.(b)(1)….)’ (Navellier v. Sletten (2002) 29 Cal.4th 82, 88[124 Cal.Rptr.2d 530, 52 P.3d 703]; see also EquilonEnterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th53, 67 [124 Cal.Rptr.2d 507, 52 P.3d 685] (EquilonEnterprises ); City of Cotati v. Cashman (2002) 29Cal.4th 69, 78 [124 Cal.Rptr.2d 519, 52 P.3d 695].)’Only a cause of action that satisfies both prongs of theanti-SLAPP statute–i.e., that arises from protectedspeech or petitioning and lacks even minimal merit–isa SLAPP, subject to being stricken under the statute.’ (Navellier v. Sletten, supra, 29 Cal.4th at p. 89 [124Cal.Rptr.2d 530, 52 P.3d 703].)
 “A ruling on a special motion to strike undersection 425.16 is reviewed de novo. (Kyle v. Carmon(1999) 71 Cal.App.4th 901, 907 [84 Cal.Rptr.2d 303].)This includes whether the anti-SLAPP statute applies tothe challenged claim. (Kashian v. Harriman (2002) 98Cal.App.4th 892 [120 Cal.Rptr.2d 576].) *610Furthermore, we apply our independent judgment todetermine whether [plaintiff's] causes of action arosefrom acts by [defendant] in furtherance of [defendant's]right of petition or free speech in connection with apublic issue. (Mission Oaks Ranch, Ltd. v. County ofSanta Barbara (1998) 65 Cal.App.4th 713, 721 [77Cal.Rptr.2d 1], disapproved on another ground inBriggs v. Eden Council for Hope & Opportunity (1999)19 Cal.4th 1106, 1123, fn. 10 [81 Cal.Rptr.2d 471, 969P.2d 564].) Assuming these two conditions aresatisfied, we must then independently determine, fromour review of the record as a whole, whether [plaintiff]has established a reasonable probability that he wouldprevail on his claims. (Church of Scientology v.Wollersheim (1996) 42 Cal.App.4th 628, 653 [49Cal.Rptr.2d 620], overruled on other grounds inEquilon Enterprises, supra, 29 Cal.4th at p. 68, fn. 5[124 Cal.Rptr.2d 507, 52 P.3d 685].)”
B. Herrera’s Motion to Strike Was ProperlyGranted
 Neither in the trial court nor on appeal does Tutorcontend that the alleged defamatory statementsdescribed in its complaint were not “protected activity”within the meaning of section 425.16, subdivision (e). Thus, it was Tutor’s burden in opposing Herrera’smotion to demonstrate a probability that it wouldprevail on its defamation claim. (§ 425.16, subd.(b)(1).) The sole impediment to a showing that theclaim had legal merit was Herrera’s assertion that thestatements were privileged under the “official dutyprivilege” (Civ.Code, § 47, subd. (a)), as well as underthe “prosecutorial” and “discretionary” immunities. (Gov.Code, §§ 821.6 & 820.2.)
Undisputed facts presented in connection with themotion reveal that Herrera was first elected SanFrancisco City Attorney in December 2001, and tookoffice in January 2002. On or about July 2, 2003,Herrera, together with outside counsel, filed a secondamended complaint for damages and penalties in CaseNo. C-02-5286 CW, in United States District Court for**26 the Northern District of California (SAC). The73-page SAC contains 13 causes of action, and namesTutor and others as defendants. Claims assertedincluded violations of state and local false claims acts,violations of RICO (18 U.S.C. § 1962), fraud, andbreach of contract, among others. In summary, theSAC seeks to recover “tens of millions of dollars ofpublic funds that the Tutor Defendants pocketed as theresult of a pervasive and elaborate pattern orracketeering, false claims, fraud and unfair businesspractices perpetrated on several major constructionprojects at the [San Francisco International Airport].”
The allegedly defamatory statements attributed toHerrera were made on March 7, 2003, during a keynoteaddress entitled “What Price, Justice?” at *611 the2003 annual dinner of the CADC, which he attended inhis capacity as city attorney. The full text of thatspeech was attached as Appendix A. After anappropriate salutation to the host group, and a referenceto a “string of eventful days at City Hall in the lastweek,” Herrera explained that “here’s the reason todaywas eventful for me,” and began his comments relatingto the federal litigation against Tutor, and recent actiontaken at City Hall in connection with the pendingaction:
“As you may or may not be aware, Mayor Brown thisevening vetoed an ordinance that had been unanimouslyapproved by the Board of Supervisors directing theAirport Commission to allocate $2.5 million forlitigation against [Tutor].
“Within the Mayor’s veto message is an opaquesuggestion which some may read as agreement on mypart in the Mayor’s decision.
“And I urge the members of the Board of Supervisorsto do the right thing and stand by their votes inover-riding it.
“If you haven’t heard much about the lawsuit, I’ll fillyou in on a few of the details.
“[Tutor] is a construction giant. In fact, it’s one of thelargest and most politically connected in the nation.
“Tutor contracted to manage construction of SFO’sInternational Terminal and several related projects,winning approximately $1 billion in business from theCity and County of San Francisco based largely on itsjoint participation with minority-owned businesses.
“What no one knew at the time–and what no one nowdenies–is that in many instances [Tutor] didn’t useminority subcontractors to do work at the airport.
“Instead, it used minority front companies, whilewhite-owned subcontractors got the bulk of work andproceeds. It did so …
“–To win an enormously valuable contract.
*612 “–To cheat legitimate minority contractors oftheir fair share of work.
Herrera went on to express his beliefs concerning thevalue of minority business preferences and hiscommitment to “our MBE/WBE program,” indicatingthat he had filed legal actions against a number ofcompanies and individuals “for attempting to defraudit.” He pointed to his concern for the pernicious effect”MBE fraud” has on the community “like the kind that[Tutor] committed at SFO.” He then turned to **27discuss another reason he filed suit against Tutor:
“Another reason is change-order fraud …
“And make no mistake about it: the evidence is there.
“In fact, the evidence we’ve seen in San Francisco fitsa similar pattern of fraud and false claims that wasestablished against [Tutor] in Los Angeles … [w]here acourt awarded the Metropolitan Transportation Agency$60 million in damages, fees and costs.
“Over the last several weeks, the Board of Supervisorshas heard the evidence of my office’s case against[Tutor]. And without a single opposing vote (with thesupport of every member of the board, in fact) theydirected the Airport Commission to fund the litigationwith $2.5 million out of the Airport’s $60 millionreserve fund. [¶]
“Now to put this dollar amount in context: the sumrequested to pursue [Tutor] for its fraudulent conductis roughly equivalent to what the Airport Commissionitself approved to fund a free luggage cart program inits customs area. [¶] … [¶]
“To argue that fiscal responsibility requires turning ablind eye to fraud is manifestly absurd….
“To those who ask, ‘What price, Justice?’–whoquestion the value of enforcing our laws through thenarrow lens of costs vs. benefits–let me give you anhonest answer:
*613 “Yes, going after fraud is expensive…. But notgoing after fraud is more expensive. [¶] … [¶]
“The fact is, the lawsuit my office is pursuing against[Tutor] and its joint venture partners at SFO is aboutmany important issues:
“–It’s about promoting equal opportunity.
“–It’s about protecting taxpayer dollars.
“–It’s about preserving the public trust.
“And, perhaps most important, it’s about affirming thevalues we share.”
Following his speech, the text was posted on theofficial website of the city attorney’s office, which wascreated and maintained at City Hall.
The so-called “official duty privilege” reposes in CivilCode section 47, subdivision (a), which states withremarkable succinctness: “A privileged publication orbroadcast is one made: (a) In the proper discharge ofan official duty.”
Within the factual context of this case, the mostimportant court decision impacting the question ofwhether Herrera’s statements fell within the official dutyprivilege is Kilgore v. Younger (1982) 30 Cal.3d 770,180 Cal.Rptr. 657, 640 P.2d 793. Indeed, it isdiscussed and quoted by both parties in their respectivebriefs. Younger involved former state attorney general,Evelle Younger, who had commissioned a study oforganized crime in California. The report named 92persons suspected of involvement in organized crime,including Kilgore, who was identified as being engagedin an illegal bookmaking operation. (Id. at pp.774-775, 180 Cal.Rptr. 657, 640 P.2d 793.) The reportwas made public by Younger at a press conferenceduring which he distributed copies to the media, andproclaimed that he “adopted” its findings. (Id. at p.775, 180 Cal.Rptr. 657, 640 P.2d 793.) Kilgore thensued for defamation and related torts.
In affirming judgment on demurrer entered in favor ofYounger, the Supreme Court noted that the official dutyprivilege is absolute and applies to public statementsmade by high-ranking governmental **28 officers inthe discharge of their official duties. “The absoluteprivilege is extended to ‘high-ranking state and federalofficials, such as the President of the United States, thegovernor of any state or territory, cabinet officers of theUnited States and the corresponding officers of anystate or territory’ [citation] on the rationale that theirability to function would be impaired and societyadversely affected *614 if they were not absolutely freeof the threat of suit by the defamed seeking recompensefor injury.” (Id. at p. 778, 180 Cal.Rptr. 657, 640 P.2d793.)
Similar to the argument made in this case by Tutor,Kilgore claimed that Younger was “politicallymotivated” and was acting as a candidate when he heldthe press conference. The court rejected thiscontention, noting: “Younger’s alleged activity, thoughit may well have been taken to produce a popular andappealing law enforcement image, was for all intentsand purposes indistinguishable from actions initiated bypublic officials truly oblivious to the politicalramifications of their moves. Here, Younger called hispress conference in his capacity as Attorney General,purported to act in such role throughout its durationand, at least as is here relevant, dealt exclusively withlaw enforcement issues. As such, it may not be saidthat his actions were outside the scope of his officialduties, or that his motives were in fact improper.” (Id.at p. 779, 180 Cal.Rptr. 657, 640 P.2d 793.)
In Royer v. Steinberg (1979) 90 Cal.App.3d 490, 153Cal.Rptr. 499, the Court of Appeal extended the officialduty privilege to all state and local officials engaged inthe policy making process and to “any statement by apublic official, so long as it is made (a) while exercisingpolicy-making functions, and (b) within the scope of hisofficial duties.” (Id. at p. 501, 153 Cal.Rptr. 499; seealso Copp v. Paxton (1996) 45 Cal.App.4th 829, 840,52 Cal.Rptr.2d 831.)
Most recently, and factually the most analogous to thiscase, the Sixth District decided Ingram v. Flippo (1999)74 Cal.App.4th 1280, 1283, 89 Cal.Rptr.2d 60. There,the Monterey County District Attorney was sued fordeclaratory and injunctive relief by a local school boardmember after issuing a press release charging the schoolboard with minor violations of California’s Brown Act(Gov.Code, § 54950 et seq.). Although the districtattorney denied any intention to prosecute for the minorviolations described in the press release, the courtnonetheless found the privilege applied: “[T]he DistrictAttorney issued a press release summarizing the resultsof an investigation of a complaint of alleged violationsof the Brown Act. The District Attorney’s ultimatedecision neither to prosecute nor to file a civil action atthe time does not, in our view, affect the application ofthe privilege in these circumstances.” (Ingram v.Flippo, supra, 74 Cal.App.4th at p. 1294, 89Cal.Rptr.2d 60.)
These principles apply with great force to the casebefore us now. As city attorney, Mr. Herrera is anelected official who is vested with the authority to”[r]epresent the City and County in legal proceedingswith respect to which it has an interest.” (San FranciscoCharter, art. VI, §§ 6.100, 6.102(1).) Included amonghis enumerated responsibilities are the following: “3.Whenever a cause of action exists in favor of the Cityand County, commence legal proceedings when suchaction is within the knowledge of the City Attorney*615 or when directed to do so by the Board ofSupervisors, except for the collection of taxes anddelinquent revenues, which shall be performed by theattorney for the Tax Collector; … 5. Makerecommendations for or against the settlement ordismissal of legal **29 proceedings to the Board ofSupervisors prior to any such settlement or dismissal. Such proceedings shall be settled or dismissed byordinance and only upon the recommendation of theCity Attorney.” (San Francisco Charter, art. VI, §6.102.)
From the admissible evidence in the record, it isundisputed that Herrera was invited to speak to theCADC as its keynote speaker, and he did so in hisofficial capacity as city attorney. The subject of hisspeech was limited to pending litigation he had filed infederal court against a large contractor with the city. The litigation, both in scope and complexity required asubstantial appropriation by the city to fund it. Apparently, the board of supervisors had approved anappropriation of $2.5 million to cover the costs andattorney fees likely to be incurred in pursuing thefederal action. However, Mayor Brown expressed hisinclination to veto the appropriation, and intimated thatHerrera was in agreement with his proposed veto.
Under these circumstances, Herrera, as city attorney,had the authority, if not the duty, to express hisprofessional opinion about the justification for, andpotential merits of, the protracted and expensivelitigation he had initiated on behalf of the city, [FN6] aswell as to make a public statement that he disagreedwith the mayor’s proposed unilateral action that wouldbring the case to a halt. While the language of hisremarks was florid and certainly cast Tutor in anunfavorable light, the comments all concerned theclaims being asserted in the federal action, andHerrera’s professional opinion, as the municipalattorney entrusted with plenary power over thatlitigation, that the matter was well worth pursuing.
FN6. Tutor suggests that the record is notclear as to whether the decision to sue Tutor infederal court was based on Herrera’s owninitiative, or at the direction of the board ofsupervisors, and consequently, his commentsat the CADC were personal and not related toany policy-making function of the cityattorney. We disagree. Whether the boarddirected the suit be filed or it came atHerrera’s own choosing, the maintenance ofsuch litigation is central to Herrera’s officialduties, including the decision to settle ordismiss, and thus, his comments were clearlywithin the ambit of his responsibilities.
As such, we conclude that the alleged defamatorystatements Herrera made concerning Tutor’s businesspractices related to the policy making he mustnecessarily perform as city attorney, and were withinthe scope of his duties. In this regard, we find nothingin the record that would materially distinguish thecontext of this case from either Kilgore v. Younger,supra, 30 Cal.3d 770, 180 Cal.Rptr. 657, 640 P.2d 793,or Ingram v. Flippo, supra, 74 Cal.App.4th 1280, 89Cal.Rptr.2d 60, and we conclude that Herrera is entitledto the protection of the official duty privilege codifiedat Civil Code section 47, subdivision (a). Like theconduct in Royer, his response *616 ” ‘was anappropriate exercise of the discretion which an officerof that rank must possess if the public service is tofunction effectively.’ [Citation.] Consequently, thepolicy of protecting officials from lawsuits which ‘mightappreciably inhibit the fearless, vigorous, and effectiveadministration of [governmental] policies’ tookprecedence. [Citation.]” (Royer v. Steinberg, supra, 90Cal.App.3d 490, 501-502, 153 Cal.Rptr. 499.)
Furthermore, we find the cases relied on by Tutor to beeither inapposite or distinguishable. First, given thepresence of controlling California precedent on thequestion before us, the authorities Tutor cites from thestates of New York and Maryland [FN7] areunnecessary to the resolution **30 of this issue, andare, thus, not authoritative.
Also, this case is not analogous to Neary v. Regents ofUniversity of California (1986) 185 Cal.App.3d 1136,230 Cal.Rptr. 281, in which a vice chancellor at theUniversity of California released a veterinarian’s reportinvestigating dead cattle at the plaintiff’s ranch, or toSanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406,134 Cal.Rptr. 402, 556 P.2d 764, where a county clerkexplained to the press that he had been “conned” by theplaintiff to release funds improperly. In those cases, theprivilege was determined not to apply to the defendants’acts because they were not made in furtherance of anypolicy-making function. Essentially, the release of theveterinarian’s report in Neary was ministerial anddivorced from any policy-making role the vicechancellor might have had. Likewise, the county clerkin Sanborn had no policy-making function relating tothe release of funds.
Nor does the recent Ninth Circuit case of McQuirk v.Donnelley (9th Cir.1999) 189 F.3d 793, assist Tutor. Inthat case, the sheriff of Glenn County allegedly madedefamatory statements in providing an employmentreference for a former employee. The statements weremade five years after the employee had retired from theGlenn County Sheriff’s Department. (Id. at p. 795.) Not surprisingly, the court concluded that answeringrequests for employment references is part of theministerial, or operational, duties of any employer, andcertainly did not relate to the policy-making, lawenforcement functions of a county sheriff. (Id. at pp.799-801.)
We also find The Hale Company v. Lea (1923) 191Cal. 202, 215 P. 900, distinguishable. In that case, thedirector of the State Laboratory was statutorilyempowered to report findings relating to potentialhealth hazards to the State Board of Health. In light ofthat function, the Supreme Court concluded that thedirector exceeded his authority and thus, was notprotected under Civil *617 Code section 47,subdivision (a), when he communicated factsascertained by him outside of California, to theWashington Department of Agriculture. (Id. at p. 207,215 P. 900.)
For these reasons, on the record before it, the trialcourt was correct in granting Herrera’s motion to strike. We then turn to Tutor’s claim that it was unfairlyrestricted in opposing the motion because the trial courtimproperly denied Tutor’s request for limited discovery.
C. The Trial Court Did Not Abuse Its Discretion inDenying Tutor’s Motion for
We have already observed that, while Tutor’scomplaint was filed in February 2004, the motionseeking limited discovery, made by ex parteapplication, was made eight months later, which wasfour months after Herrera had filed his special motionto strike. However, while lack of timeliness was one ofthe grounds Herrera raised in opposition to the request,the trial court denied the motion on the basis that: “Tutor had not identified any factual issue that it hopesto establish through the requested discovery that couldaffect the outcome of Herrera’s anti-SLAPP motion tostrike.” Thus, the request was denied because thematerial requested was irrelevant to the issues raised byHerrera’s anti-SLAPP motion.
 Generally, discovery is closed once a motion tostrike under Code of Civil Procedure section 425.16has been filed. (Code Civ. Proc. § 425.16, subd. (g).) However, the trial court may allow discovery limited tothe issues raised by the motion to strike upon “a timelyand proper showing in response to the motion to **31strike.” (Lafayette Morehouse, Inc. v. ChroniclePublishing Co. (1995) 37 Cal.App.4th 855, 868, 44Cal.Rptr.2d 46.) The “proper showing” includes “goodcause” for the requested discovery. (Code Civ. Proc., §425.16, subd. (g).) “We review for abuse of discretionas to the trial court’s decision as to whether a plaintiffhas complied with the requirements of [Code of CivilProcedure] section 425.16, subdivision (g) to meritdiscovery prior to a hearing on the motion to strike.[Citations.]” (Tuchscher Development Enterprises, Inc.v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th1219, 1247, 132 Cal.Rptr.2d 57.)
 Moreover, in considering whether the trial courtabused its discretion finding a lack of good cause whichwould justify the discovery requested under Code ofCivil Procedure section 425.16, subdivision (g), wenote especially that ” ‘[u]nder this standard thereviewing court will not disturb the trial court’s decisionunless it “has exceeded the limits of legal discretion bymaking an arbitrary, capricious, or patently absurddetermination.” ‘ ” (Tuchscher DevelopmentEnterprises, Inc. v. San Diego Unified Port Dist.,supra, 106 Cal.App.4th at p. 1247, 132 Cal.Rptr.2d57.)
 *618 In his motion for discovery, Tutor enumeratedfive categories of discovery he sought including: (1)”Identity of persons and other entities to whom Herrerapublished statements related to the Federal Action andimproper business practices by [Tutor]“; (2)”Communications and/or writings between Herrera [andhis office] and third persons related to the FederalAction”; (3) “Communications and/or writings betweenHerrera [and his office] and San Francisco StateUniversity related to the Federal Action”; (4)Communications and/or writings between Herrera [andhis office] and California State Bar related to theFederal Action”; and (6) “Communications and/orwritings between Herrera [and his office] andChinese-American Democratic Club related to theFederal Action.” As to each, Tutor asserted that thediscovery was relevant “to establish identity ofwitnesses, knowledge of falsity of claims and malice,”in addition to proving that the defamatory statementsattributed to Herrera were actually made. [FN8]
Thus, the discovery sought by Tutor in its movingpapers was purportedly needed to establish a primafacie case for defamation. However, as noted, Herreraneither denied making the statements attributed to himin the complaint, nor any of the other elementsnecessary to establish a prima facie claim fordefamation against him. Herrera’s position was that,even if Tutor could make out a prima facie claim ofdefamation, he had affirmative defenses to a prima faciecase in the form of the absolute privileges he wasasserting.
In fact, at the hearing on the motion for discovery,counsel for Tutor conceded that, in light of Herrera’sposition with regard to the prima facie case ofdefamation, “a lot of the discovery might be moot.” When faced with the court’s skepticism concerning theneed for any discovery, and contrary to its movingpapers, counsel then raised the argument that,”depending on the court’s ruling here, and whether thecourt is finding that certain privileges apply,” Tutorcontended it was “entitled to [discovery] which can helpestablish that these privileges do not apply.” That is, ifthe court determined that Herrera was acting in hisofficial capacity, Tutor **32 “should be able toexplore” this question further.
In light of this record, the trial court was well within itsdiscretion in denying discovery. The request soughtdiscovery in order to prove the elements of a primafacie claim for defamation. As noted, a prima faciecase for defamation was conceded by Herrera. Tutor’slast minute attempt to argue that discovery was neededto “explore” the factual basis for Herrera’s privilegeclaim was much too little, and came much too late.
*619 As to being too little, no attempt was made bycounsel to explain what specific discovery was needed,and why it was needed. At best, counsel offeredgeneral comments that they should be able to exploreand conduct discovery on what “exactly [Herrera's]duties are and whether his decision to speak at [CADC]fell within those official duties.” Counsel also arguedthat discovery was needed to determine if the eventhosted by CADC constituted a “public forum,” underthe anti-SLAPP law.
On this latter point, Tutor had already conceded thatHerrera had satisfied the first prong of the anti-SLAPPlaw, and therefore, there was no need to addresswhether the CADC event was a “public forum.” Thebelated showing was indeed irrelevant to the issueunder consideration. As to the former point, Tutormade no showing whatsoever how the discovery waslikely to lead to admissible evidence relevant to theprivilege issue.
In many respects, this case is similar to the recent caseof Blanchard v. DIRECTV, Inc. (2004) 123Cal.App.4th 903, 20 Cal.Rptr.3d 385. In Blanchard anaction was brought by recipients of letters sent byDIRECTV, a television provider, demanding that therecipients not use pirating devices. DIRECTV filed ananti-SLAPP motion to strike, asserting (1) thecomplaint arose from its demand letters, which weresent in anticipation of litigation and thus constituted anexercise of its right to petition, and (2) plaintiffs couldnot show a reasonable probability of success on theirclaims because the demand letters were immune fromliability under the litigation privilege. (Civ.Code, § 47,subd. (b).) The trial court granted DIRECTV’s motionto strike and dismissed the complaint, finding thatDIRECTV’s demand letters were absolutely privileged.
The Court of Appeal affirmed, finding that “plaintiffs’showing failed to demonstrate prima facie that theycould overcome the litigation privilege.” (Blanchard v.DIRECTV, Inc., supra, 123 Cal.App.4th at p. 922, 20Cal.Rptr.3d 385.) Moreover, the plaintiffs were notentitled to prehearing discovery of DIRECTV’sbusiness records. The court observed that since”plaintiffs did not demonstrate any other facts theyexpected to uncover in their discovery that wouldnegate the privilege,” the business records wereirrelevant and the trial court did not abuse its discretionin denying discovery. (Ibid.)
Tutor’s original request sought discovery on factualissues that were conceded by Herrera in Tutor’s favor. Counsel admitted as much at the beginning of oralargument below. When it became evident that the courtwould likely rule against that request, counsel conjuredan alternative argument in a desperate attempt to staveoff the ruling. The court was within its discretion toreject it.
The trial court was correct in granting Herrera’s specialmotion to strike, and did not abuse its discretion indenying Tutor’s request for limited discovery. Thejudgment **33 is affirmed. Costs on appeal areawarded to Herrera.
We concur: KLINE, P.J., and HAERLE, J.
136 Cal.App.4th 604, 39 Cal.Rptr.3d 21, 06 Cal. DailyOp. Serv. 1209, 2006 Daily Journal D.A.R. 1637
END OF DOCUMENT